IN THE CASE OF:  
BOARD DATE: 23 July 2021 DOCKET NUMBER: AR20210007414 
APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record) 
. DD Form 293 (Application for the Review of Discharge) 
. DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge) 
. Self-written statement 
FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2. 
The applicant states: 


a. 
When he was inducted into the Army at 18 years old he was leaving a house where his father mentally and physically abused him for most of his life. At that time 54 years ago, he was in the worst state of his young life and the Army frankly got the worst of him. His emotions and state of mind caused him to make irreversible mistakes back then, that he still regrets to this day. 

b. 
The reason why he got an Other Than Honorable Discharge was because of insubordination to a superior officer. He reacted by disobeying a direct command from captain G. He should have simply followed the officer's command; to come to attention and salute him. For the past 54 years he has had to live with the poor decisions he made; and how he did not serve his country how he should have. He deserved the punishment he received and the Other Than Honorable Discharge. As he is getting near his father's age when he died he wants to apologize and repair some of the heartbreaking mistakes he has made. 

c. 
The Army has been an influential part of the person he has later become. His service time in the United States military is a primary component of the legacy and memory he leaves for his grandchildren. He humbly asks for a review of his discharge with the purpose to upgrade the status to general or honorable, if the Board feels it has been enough years to warrant this request. 


3. 
On 8 February 1966, the applicant was inducted in the Army of the United States. He completed training requirements and was awarded his military occupational specialty. 

4. 
On 3 September 1966, he submitted an application for a hardship separation. The reasons cited by the applicant for requesting to be released from the Army were that, his father was is in danger of losing his only means of support for the family, which consisted of 9 members.  The applicant was trained in the transmission business by his father and worked with him before he was drafted into the Army. Since he was drafted, his father’s business had been on a steady decline. If the applicant was not released, his father was bound to lose all support and be in debt for the rest of his life. The children would have gone without proper care. The applicant made an allotment to his parents since the hardship had developed, but $40 was only a very small fraction of what the family needed to exist. 

5. 
On 6 September 1966, the applicant’s commander recommended approval of his request for a hardship separation; however, his chain of command at the battalion level and above recommended disapproval. The applicant’s request for a hardship separation was not favorably considered. 

6. 
His record shows from on or about 14 February to 2 March 1967 he was absent without leave (AWOL). 

7. 
On 10 March 1967, the applicant was arraigned, tried and convicted by a summary court-martial.  He pleaded guilty and was found guilty of being AWOL from on or about 14 February to 2 March 1967 and willfully disobeying a lawful command. His sentence consisted of reduction to private first class (E-3), forfeiture of $50 per month for 1 month, and restriction for 30 days. 

8. 
On 6 May 1967, he received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for not being at his appointed place of duty on 20 and 21 April 1967. His punishment consisted of extra duty and restriction for 14 days, and reduction to private (E-2) (suspended for 60 days). 

9. 
His record contained U.S. Department of Justice Federal Bureau of Investigation records that show: 


. 22 August 1967, the applicant was charged with “cattle theft” . 18 October 1967, he was charged with breaking and entering (auto) 
10. On 5 December 1967, the applicant’s Personnel Qualification Record shows he 
was tried and convicted by the 27th District Court of Bell County, Texas, of breaking and entering into a motor vehicle.  He was sentenced to probation for 3 years. 
11. 
On 14 December 1967, the applicant was arraigned, tried and convicted by a special court-martial. He pleaded guilty and was found guilty of being AWOL from on or about 18 October to 5 December 1967.  His punishment consisted of confinement at hard labor for 6 months and forfeiture of $64 per month for 6 months. 

12. 
On 15 December 1967, a medical examination cleared the applicant for separation action deemed appropriate by his chain of command.  He was also seen for evaluation by the Mental Hygiene Consultation Service at Fort Hood, Texas. 

13. 
On 19 December 1967, the applicant’s court-martial sentence was approved, but the execution thereof was suspended for 6 months, at which time, unless the suspension was vacated, the sentence was remitted without further action. 

14. 
On 9 February 1968, he indicated there had been no change in his medical condition since his last separation examination.  On the same date, Headquarters, III Corps and Fort Hood, issued Special Orders Number 35 discharging the applicant under conditions other than honorable with an Undesirable Discharge Certificate for “misconduct”, effective 12 February 1968. 

15. 
The applicant’s record did not contain a complete discharge packet; however, the DD Form 214 he signed for shows he was discharged on 12 February 1968 in accordance with Army Regulation 635-206 (Personnel Separations – Misconduct (Fraudulent Entry, AWOL, Desertion, Conviction by Civil Court)), separation program number 284 (misconduct, convicted or adjudged a juvenile offender by a civil court during current term of active military service).  His character of service was listed as 


“under conditions other than honorable” and he was issued an Undesirable Discharge 
Certificate.  He completed 1 year, 10 months, and 2 days of net service this period with time lost from 14 February to 1 March 1967, 18 October to 4 December 1967, and 2 January 1968. The applicant was not awarded a personal decoration. 
16. 
Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  In 

pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 

17. 
Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. 

18. 
In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 

19. 
MEDICAL REVIEW: 


a. 
The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his undesirable discharge. 

b. 
When he was inducted into the Army at 18 years old he was leaving a house where his father mentally and physically abused him for most of his life.  At that time 54 years ago, he was in the worst state of his young life and the Army frankly got the worst of him.  His emotions and state of mind caused him to make irreversible mistakes back then, that he still regrets to this day. 

c. 
The reason why he got an Other Than Honorable Discharge was because of insubordination to a superior officer. He reacted by disobeying a direct command from captain G.  He should have simply followed the officer's command; to come to attention and salute him.  For the past 54 years he has had to live with the poor decisions he made; and how he did not serve his country how he should have. He deserved the punishment he received and the Other Than Honorable Discharge. As he is getting near his father's age when he died he wants to apologize and repair some of the heartbreaking mistakes he has made. 

d. 
The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: 

(1) 
DD Form 149 (Application for Correction of Military Record) 

(2) 
DD Form 293 (Application for the Review of Discharge) 

(3) 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 

(4) 
Self-written statement 

e. 
VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. 



f. 
A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. 

g. 
The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on8 February 1966 and was discharged on 12 February 1968 in accordance with Army Regulation 635-206 (Personnel Separations – Misconduct (Fraudulent Entry, AWOL, Desertion, Conviction by Civil Court)), separation program number 284 (misconduct, convicted or adjudged a juvenile offender by a civil court during current term of active military service).  His character of service was listed as “under conditions other than honorable” and he was issued an Undesirable Discharge Certificate. 

h. 
On 3 September 1966, he submitted an application for a hardship separation. The reasons cited by the applicant for requesting to be released from the Army were that, his father was is in danger of losing his only means of support for the family, which consisted of 9 members. 

i. 
On 6 September 1966, the applicant’s commander recommended approval of his request for a hardship separation; however, his chain of command at the battalion level and above recommended disapproval, and it was ultimately denied. 

j. 
His record shows from on or about 14 February to 2 March 1967 he was absent without leave (AWOL). 

k. 
On 10 March 1967, the applicant was arraigned, tried and convicted by a summary court-martial. He pleaded guilty and was found guilty of being AWOL from on or about 14 February to 2 March 1967 and willfully disobeying a lawful command. 

l. 
On 6 May 1967, he received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for not being at his appointed place of duty on 20 and 21 April 1967. 

m. 
His record contained U.S. Department of Justice Federal Bureau of Investigation records that show: 

(1) 22 August 1967, the applicant was charged with “cattle theft” 
(2) 18 October 1967, he was charged with breaking and entering (auto) 

n. 
On 5 December 1967, the applicant’s Personnel Qualification Record shows he was tried and convicted by the 27th District Court of Bell County, Texas, of breaking and entering into a motor vehicle. 

o. 
On 14 December 1967, the applicant was arraigned, tried and convicted by a special court-martial. He pleaded guilty and was found guilty of being AWOL from on or about 18 October to 5 December 1967. 

p. 
On 15 December 1967, a medical examination cleared the applicant for separation action deemed appropriate by his chain of command. 


q. On 9 February 1968, he indicated there had been no change in his medical condition since his last separation examination.  On the same date, Headquarters, III Corps and Fort Hood, issued Special Orders Number 35 discharging the applicant under conditions other than honorable with an Undesirable Discharge Certificate for “misconduct”, effective 12 February 1968. 
r. JLV does not contain any Behavioral Health diagnoses. 
s. 
The applicant did not supply any medical records or documents to support any potential mitigating circumstances for his misconduct form a BH perspective. 

t. 
After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating BH diagnosis. The applicant met retention standards at the time of discharge. the applicant does not have a service connection. Under liberal guidance, the applicant does not have any BH mitigating factors for his misconduct. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct which included criminal activity, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
:XX :XX :XX DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 
X 
CHAIRPERSON 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 
REFERENCES: 
1. 
Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 

3. 
Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. 

4. 
On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. 


a. 
Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 

b. 
This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 


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